United States v. Fields ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 2, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-3506
(D. Kansas)
JASON D. FIELDS, (D.Ct. Nos. 03-CV-3441-SAC and
02-CR-40041-SAC)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On August 1, 2002, Jason Fields pled guilty to counts one and four of a
four count indictment. Count four alleged Fields was involved in a conspiracy to
rob a house used to sell drugs in violation of the Hobbs Act, 18 U.S.C. § 1951, 1
1
18 U.S.C. § 1951(a) provides:
during which he discharged a firearm in violation of 18 U.S.C. § 924(c). 2
Judgment was filed on November 19, 2002, and Fields did not file a direct appeal.
On November 17, 2003, Fields filed a 28 U.S.C. § 2255 motion alleging his
counsel was ineffective for failing to object to count four, advising him to plead
guilty to count four and not appealing count four. The district court denied the §
2255 motion on December 2, 2004. 3 On December 20, 2004, Fields filed a notice
of appeal with the district court. 4 On January 4, 2005, Fields filed a pro se notice
of appeal with this Court which we construe as an application for a Certificate of
Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery . . . or attempts or
conspires so to do, or commits or threatens physical violence to any person or
property in furtherance of a plan or purpose to do anything in violation of this
section shall be fined . . . or imprisoned not more than twenty years, or both.
2
Section 924(c) provides for additional penalties for anyone who, inter alia,
discharges a firearm in relation to a “any crime of violence or drug trafficking crime . . .
for which the person may be prosecuted in a court of the United States.”
3
The district court granted Fields’ motion to proceed in forma pauperis. Thus, he
can proceed ifp on appeal.
4
“If an applicant files a notice of appeal, the district judge who rendered the
judgment must either issue a certificate of appealability or state why a certificate should
not issue.” FED. R. APP. P. 22(b)(1). The district court did not act on Fields’ constructive
request for a Certificate of Appealability (COA). Pursuant to the General Order of
October 1, 1996, a COA is deemed denied if the district court does not address the
issuance of a COA within thirty days. See United States v. Kennedy, 225 F.3d 1187, 1193
n.3 (10th Cir. 2000).
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Appealability (COA). 5 F ED . R. A PP . P. 22(b)(2). Fields also requested leave with
this Court to amend and supplement his § 2255 motion to incorporate a Sixth
Amendment objection in light of the Supreme Court’s recent decisions in Blakely
v. Washington, 542 U.S. 296 (2004), and United States v. Booker, -- U.S. --, 125
S. Ct. 738 (2005).
Analysis
A COA is a jurisdictional pre-requisite to our review. One may issue only
“if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
The petitioner must demonstrate that reasonable jurists would find the court’s
assessment of the claims debatable or wrong. Id. at 327 (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Although petitioner, in requesting a COA,
is not required to prove the merits of the case, the threshold of proof is higher
than good faith or lack of frivolity. Id. at 338. “Section 2255 motions are not
available to test the legality of matters which should have been raised on direct
appeal.” United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (internal
citation omitted). When a petitioner “fails to raise an issue on direct appeal, he is
barred from raising the issue in a § 2255 proceeding, unless he establishes either
5
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
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cause excusing the procedural default and prejudice resulting from the error, or a
fundamental miscarriage of justice if the claim is not considered.” United States
v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).
“A defendant may establish cause for his procedural default by showing
that he received ineffective assistance of counsel in violation of the Sixth
Amendment.” United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (internal
citation omitted). “To establish a claim for ineffective assistance of counsel, a
defendant must show that (1) his counsel's performance was constitutionally
deficient, and (2) counsel's deficient performance was prejudicial.” Id. at 392
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Hill v.
Lockhart, 474 U.S. 52, 58 (1985) (applying Strickland test to ineffective
assistance of counsel challenges to guilty pleas). We “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Counsel is not ineffective
for failing to advance a futile argument. See Hawkins v. Hannigan, 185 F.3d
1146, 1152 (10th Cir. 1999).
The essence of Fields’ claims is that his conspiracy to rob a home used to
sell illegal drugs did not involve interstate commerce because there was no
evidence the marijuana sold from the house was grown outside of Kansas. He
maintains, therefore, his conduct was not prohibited by the Hobbs Act. As a
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result, Fields argues there was no predicate federal felony to trigger the enhanced
sentencing provision in § 924(c). Thus, according to Fields, his attorney was
ineffective for failing to object to count four, advising him to plead guilty to
count four, and failing to appeal his plea to count four.
Fields’ argument ignores his own admissions, the reach of the Hobbs Act
and the commercial nature of drug trafficking. At his plea hearing, Fields
admitted he robbed a home/business “that operates in interstate commerce and
which is engaged in interstate commerce and an industry that affects interstate
commerce.” (R. Doc. 30 at 11.) The truth and accuracy of a defendant’s sworn
statements at his change of plea hearing are “conclusive in the absence of a
believable reason justifying” their rejection. United States v. Bambulas, 571 F.2d
525, 526 (10th Cir. 1978). Fields fails to set forth any believable reasons for
rejecting his statement. Additionally, this Court has previously held the Hobbs
Act “reaches robberies that in any way or degree obstruct, delay, or affect
commerce.” United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir. 2003), cert.
denied, 540 U.S. 1157 (2004). As other courts have made clear, illegal drug
trafficking constitutes commerce for purposes of the Hobbs Act. See United
States v. Moore, 363 F.3d 631, 636 (7th Cir. 2004) (the robbery of drugs or
money from a drug dealer is treated as a robbery of a business); United States v.
Rodriguez, 360 F.3d 949, 955-56 (9th Cir. 2004) (same); United States v.
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Williams, 342 F.3d 350, 355 (4th Cir. 2003); United States v. Marrerro, 299 F.3d
653, 655 (7th Cir. 2002). We see no reason to disagree with this conclusion.
Thus, a robbery of a drug dealer sufficiently affects commerce to fall under the
purview of the Hobbs Act.
As to Fields’ request to include Blakely and Booker claims, we have held
neither Blakely nor Booker applies on collateral review when the defendant’s
conviction was final at the time of these decisions. United States v. Price, 400
F.3d 844, 845 (10th Cir. 2005) (Blakely); United States v. Bellamy, 411 F.3d
1182, 1184 (10th Cir. 2005) (Booker). The judgment accepting Fields’ guilty plea
was entered on November 19, 2002, and he did not file a direct appeal.
Therefore, Fields’ conviction became final ten days after it was entered, when his
time to file a petition for appeal expired. See F ED . R. A PP . P. 4(b)(1)(A)(i);
Teague v. Lane, 489 U.S. 288, 295 (1989). Cf. United States v. Burch, 202 F.3d
1274, 1278 (10th Cir. 2000). The Supreme Court decided Blakely on June 24,
2004, and Booker on January 12, 2005. Because Fields’ conviction was final
before the Supreme Court decided either Blakely or Booker, his Blakely and
Booker claims are unavailing.
Conclusion
For the foregoing reasons, we DENY Field’s request for a COA and
DISMISS the appeal. We also DENY his request to amend his § 2255 motion to
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incorporate a Blakely/Booker claim.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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